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In a plea seeking a declaration that the Prime Minister's Citizen Assistance and Relief in Emergency Situation (PM Cares) Fund classifies as "State" under Article 12 of the Indian Constitution, it has today been argued before the Delhi High Court that, "There is an attempt to portray the fund as being part of the Government of India," and that "if the fund is not State under Article 12 it should be restrained from using the prefix "PM", and the Centre should not extend secretarial support to the fund."

Sr. Adv. Shyam Divan appearing for the petitioner Samyak Gangwal put various arguments before the bench of Chief Justice DN Patel and Justice Jyoti Singh for the stand, including that, "Using the PM's name in the fund itself makes it a government fund."

He pointed out that the PM himself is the settler in this Trust and a "Deed of Trust" has been executed by the PM in "public interest", thereby an attempt is being made to build an institution of "permanent character". 

Divan also told the court that the amount collected in the fund can also be used for schemes by the Prime Minister for calamities, natural disasters, and argued that the fund has a public purpose of the "widest objective".

Referring to the clauses of the PM Cares Fund Trust Deed, which say that the Trust is not created by or under the Constitution of India or by or under any law of the Parliament, Divan contended that these clauses are meant to say that no judicial review can be exercised with respect to the Trust (PM Cares Fund), however "judicial review is a part of the basic structure and therefore this self declaration cannot stand."

Divan submitted in this regard, "A Trust cannot say "I am not the state" and merely because it says  so, it can't be that nobody can examine it." 

Emphasizing the point to press it home, Divan further said, "I don't think even the courts can set up a Trust like this and say that look the 5-senior most judges will be the ex-officio members but the Trust won't be "State"."

Highlighting the use of the national emblem with the Fund, Divan argued that "the use of the emblem with the PM Cares Fund is very important because it gives the fund an official sanction and faith is placed on the emblem.

Earlier, replying to the plea, the Under Secretary at the Prime Minister's Office had informed the court that he is discharging functions in the PM Cares Trust on honorary basis only and that the fund is a charitable Trust not created by or under the Constitution of India or by any law made by the Parliament or by any State legislature.

The Under Secretary had also stated that the prayer is not maintainable, as it is irrelevant for the Right to Information Act, 2005 whether an authority, body or institution is a “state" for the RTI Act.

It has further been submitted that as the plea prays only for various reliefs for transparency, it "does not matter whether PM Cares is a "State" as it "functions with transparency and its funds are audited by an auditor who is a CA drawn from the panel prepared by the CAG."

The affidavit emphasized that the Trust’s fund is not a fund of Government of India and the amount does not go in the Consolidated Fund of India.

It was also said the petitioner "who is just a busy body" cannot invoke writ jurisdiction praying for a prerogative writ to direct a Trust to delete one of the paragraphs from the Trust Deed as "such a prayer is not only unheard of but is legally not maintainable."

Sr. Adv. Shyam Divan appearing for the petitioner had submitted that through the instant petition, the petitioner had "no intention of attributing or even alleging any wrongdoing whatsoever on the part of the present Ex-Officio Trustees of the PM CARES Fund." 

However, since the PM CARES Fund's Trustees are "high government functionaries, it is essential that checks and balances envisioned in Part III of the Constitution are put in the place on the functioning of the Fund to extinguish any chance of an allegation of quid pro quo”.

Divan further stated that if the Government is not willing to recognize the PM Cares Fund as State under Art. 12, a direction may be made to the Centre to publicise that the PM Cares Fund is not a fund of the Government of India and to restrain PM Cares from using 'Prime Minister of India' or 'Prime Minister', including its abbreviations and its name, on its website, Trust Deed and other official or unofficial communications and advertisements.

The petition filed by one Samyak Gangwal says that “PM Cares Fund performs a public function, which is similar to government functions. It utilises the privileges, benefits and exemptions which are reserved for the state.” Therefore, Gangwal argues, “It is unimaginable that a fund, which has been set up by the Prime Minister of India, has been declared to be a fund over which there is no government control.”

Art. 12 of the Constitution of India reads thus, “Definition in this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

Fundamental Rights under Part III of the Constitution of India can be enforced under authorities under Art. 12.

Case Title: Samyak Gangwal vs Union of India